The defense continued this afternoon to press for “no case to answer”, citing missing elements of entrustment and dominion, coupled with the mysteries surrounding the FIR and the inability of the prosecution’s witnesses to testify of the “sham” aspect of Xtron bonds.
CN PHOTOS: Daniel Poh.
Building on the defense team’s earlier submissions of the prosecution’s failure to provide direct evidence or reasonable inference proving a conspiracy to misuse church funds, senior counsel for Tan Ye Peng, N. Sreenivasan, put forth more questions, undermining the various charges of wrongdoing faced by the defendants.
To the prosecution’s submission that its case was not that the accused harbored an intention for wrongful gain but to cause wrongful loss, the question to be asked, said Sreenivasan, was: Why would the accused have wanted to cause wrongful loss?
Sreenivasan also revisited the matter of the mysterious FIR (First Information Report), which had raised much doubt regarding the identity—and the existence—of the complainant who first blew the whistle on purported wrongdoings.
Sreenivasan also brought to the court’s remembrance the “disgraceful spectacle” of the auditors pointing fingers at each other, away from themselves.
He cited exhibit E269, the lengthy email Tan had sent Foong Daw Ching which revealed various crucial elements of the bond investments. In that email, his client had asked the managing partner of the church’s audit firm point-blank, if the transactions were “legally above board” and if there were “any breaches of corporate governance.”
Sreenivasan stated that this piece of evidence formed the “litmus test” of whether the accused intended to deceive the auditors, putting forth the two most plausible likelihoods—either Tan was being “extremely stupid”, or he was simply being very honest with the church’s auditors.
There was also the striking fact that none of the prosecution’s witnesses had been able to testify what a sham investment was. Chew Eng Han’s lawyer, senior counsel Michael Khoo, pointed to evidence suggesting that the investments were in fact contrary to a sham—there were returns on the Xtron bond investment, made good by the rights and obligations of both parties.
Revisiting evidence to show his client’s state of mind as to the purpose of the ARLA (Advanced Rental License Agreement) which the prosecution claims was a disguise to divert the church funds, Khoo reminded the court that his client and several other parties were still trying to obtain a loan from Citic Ka Wah Bank as late as May 2007. If he had truly been conspiring to divert the church’s funds within the time frame of Jan to Aug 2007 as charged, it did not make sense that he would approach the bank.
What The “False” Accounting Entries Should Have Been
Sreenivasan also contested the prosecution’s falsification charges. If the accounts had been falsified, a simple way to prove it would have been to ask the auditors what the correct entries should have been—a question that, he maintained, had never been posed toward the witnesses by the prosecution team.
The Element of Entrustment and Dominion
Sreenivasan called the prosecution’s case a “cut and paste conspiracy”, due to the absence of a complainant or loss on the part of the church, and the fact that dominion of the funds in question to was pinned to his client, Tan, for some charges, and to the other defendants for other charges— completely ignoring the role of the church’s board of directors in the whole matter.
This was in addition to a point made earlier by Khoo. Addressing the matter of entrustment as one of the necessary elements of a CBT offense, Khoo emphasized that there was no entrustment of the church’s building fund to Kong Hee, Tan Ye Peng and John Lam; the funds were entrusted to the church’s board collectively. None of the defendants could have done anything without the consent of the other board members.
In addition, lawyer for Sharon Tan, senior counsel Kannan Ramesh, rebutted the prosecution’s point that Tan Ye Peng had dominion over the management of the church’s funds merely due to his position as a board member. If it were true, he argued, then Tan could have acted independently to move the funds around without the consent of the other board members, which was not the case. Previous email evidence had shown that his client had acted upon Tan’s instructions to allegedly falsify the church’s accounts.
The defense team will conclude its submissions with senior counsel Andre Maniam tomorrow at 9:30am.
Heard In Court
Senior counsel for Tan Ye Peng, N. Sreenivasan summarised his understanding of the prosecution’s case in a few points.
On why the defendants were still charged despite making good on investments:
“When the Commissioner of Charities came in and there was a hole of about 40-over million, it got filled up. So these people in the dock who seemed to think that it was a good investment and it was the right investment by their own beliefs, well, I find it hard to be sceptical because their beliefs turned out to be correct. Their faith in Wahju, their faith in the fact that they were doing something right, something correct, something in furtherance of their beliefs was borne out. Why are they then still in the dock? They are still in the dock because we have an unknown complaint by a victim who has not been identified, if there is at all a victim, on FIRs that are really mysterious and prosecution witnesses who refuse to point the finger at the dock.”
On the lack of direct evidence produced by the prosecution:
“So what is the prosecution left with? Emails, emails, emails stitched together. My learned friend will tell you tomorrow, your Honour, the usual mantra of every prosecutor who has no evidence—‘the accused persons must be asked to explain these emails. These emails are there and, your Honour, we must hear from them.’ Burden of proof, prosecution; presumption of innocence, accused. At this stage, you do not call the defence because of curiosity. You do not call the defence because of unexplained emails which the prosecution has not put to any witness and which are ambiguous for the reasons that my learned friends who have gone on before me have highlighted.”
Citing former Chief Justice Chan Sek Keong on primary fact vs inference
“If that is their best shot, and that was a point that Chan Sek Keong CJ took great pains to point out—if you have a primary fact, you assume credibility. If you have an inference, it is a different test. You do not call a defence. You cannot ask the court to call for a defence when all your evidence is emails hanging in mid-air, especially since, as has been set out in all the written submissions, none of the emails is an admission of the offences in relation to which the accused persons are charged.”
On the Prosecution’s interpretation of the emails:
“The prosecution has had years, and, again, this is a point that I think Mr Tong and Mr Khoo have made. If they wanted those emails to have a particular meaning or if they wanted the accused’s version on those emails, there’s a very simple way of doing it, a way that has been done for the last 200 years—not emails of 200 years but letters perhaps.
“The accused person is called up by a police officer. He is shown a document and then he is asked, “This document says this; what is your explanation?” That explanation is then recorded in a statement and produced to the court as part of the prosecution’s case. When they don’t do that, then, with respect, I think the interruption of my learned friend, Mr Tong, was unwarranted. He is right when he says that the prosecution can’t interpret the emails from the Bar.”
Questioning if, the accused do not explain the emails, if the evidence is enough to convict them:
“Let’s assume all the accused persons choose to remain silent—let’s assume that for the time being — and none of them want to explain any of the emails. Applying the test that Chan Sek Keong CJ had put on Zero Nalpon, on the face of the face of the emails, it must be enough to convict.
“If it is not, then your Honour cannot call the defence on the face of the emails, because this is not a question of primary evidence and inherent incredibility. Against those emails your Honour has the evidence of the auditors, your Honour has the evidence of the church members. Your Honour will find that there is no date, time and place, and which we invited in our submissions, for the prosecution to identify who did what and when in terms of the conspiracy.”
On Tan Ye Peng’s state of mind when he addressed concerns with auditor Foong Daw Ching:
“E-269, as far as my client is concerned, Tan Ye Peng, was dated 21 July 2008. The prosecution’s answer to that is, ‘Oh, it postdated the first three charges.’ Never mind, forget the first three charges, it predated the rest. He tells Foong Daw Ching about the AMAC-Xtron agreement. He asks whether the bonds have to be written down. He asks whether there should be equity. His final questions, ‘Are the above transactions legally above board? Are there any breaches of good corporate governance?’ My client writes to the managing partner of the audit firm, sets out the facts and asks this question.
“My learned friend will stand up tomorrow and say, ‘Ah-ha, but he didn’t tell the auditor everything.’ Your Honour can read what he wrote and he told the auditor many, many things which would have invited enquiries, questions, clarifications. Your Honour, there are only two types of people who would write a letter like this when they have committed a crime or are planning to commit a crime—either people are extremely stupid or people who are honest.
“When we look at the inference of honesty or dishonesty, this email, which took us great difficulty to put through, your Honour will recall, this email is the litmus test. Your Honour needs only ask one question: would a dishonest man have sent this? That is an inference your Honour can draw on the face of it.”
中文报道 – CHC审讯：辩方指检方制造“剪贴”阴谋
